FAI Rules: a guide to the consultation

The Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 (“the Act”) provides a legal framework within which fatal accident inquiries (“FAIs”) will be conducted. However, the detail of how inquiries will work in practice has been left to rules which will sit under the Act. Draft rules have been prepared by the Scottish Civil Justice Council and are currently out for consultation until 23 January 2017.

Although the substantive law has not changed radically, the hope and intention is that the way FAIs are conducted and prepared for will be improved.

Background

In 2008 Lord Cullen was asked by Scottish ministers to carry out a review of FAI legislation. There was no sense that it needed to be completely overhauled; in fact, it was widely considered that the FAI system worked quite well. However, there was a sense that it was lagging behind other parts of the justice system and there was room for practical improvement. Lord Cullen’s aim was to set out practical measures for an effective, efficient and fair system. He made a series of recommendations, many of which were directed to the Crown Office and concerned delays in deciding whether to bring an inquiry. Those were dealt with administratively and a new unit (the Scottish Fatalities Investigation Unit) was formed to deal with FAIs. Ministers took on board most of the others and these are implemented by the Act.

The Act does not radically change the law; it modernises and expands upon it. The key changes are:

• it extends the circumstances in which it is mandatory to hold an inquiry to include deaths of children in secure custody;
• it allows an FAI to be held where a Scottish resident dies outside the UK;
• the Lord Advocate must give reasons for not holding an FAI when requested by certain persons;
• it is now a requirement, in most cases, to hold a preliminary hearing (some sheriff courts have already been holding these to great effect);
• where a sheriff makes a recommendation, the person to whom it is addressed must explain what they have done to implement it;
• FAIs can be held outside the sheriff court district or sheriffdom in which the death occurred;
• an FAI can now be reopened, which was not the case before.

Crucially, the Act ensures that inquiries remain inquisitorial fact-finding hearings. Inquiries do not apportion blame or guilt in the civil or criminal sense; that is for civil or criminal proceedings. They are inquisitorial judicial inquiries that are held in the public interest to establish the circumstances of sudden, suspicious or unexplained death or deaths that have caused serious public concern. The sheriff will consider what steps, if any, might be taken to prevent other deaths in similar circumstances.

The need for rules, and the working group

Currently the inquiry rules are to be found in three places: the Sudden Deaths Inquiry (Scotland) Act 1976, the Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 and the Sheriff Court Ordinary Cause Rules 1993 all apply. This mix of sources is not ideal for a number of reasons, and Lord Cullen recommended a self-contained set of rules setting out the procedure to apply at an inquiry.

The Scottish Civil Justice Council is responsible for drafting the FAI procedure rules and for keeping them under review. The Council set up a working group to develop the rules required to implement the Act. Sheriff Principal Abercrombie was appointed to chair the working group, which is comprised of two sheriffs with expertise in fatal accident inquiries, representatives from the Scottish Courts & Tribunals Service, the Scottish Legal Aid Board, the Scottish Government, COPFS, and Victim Support Scotland, together with an advocate and a solicitor.

Key aims and aspects of the rules

The working group has designed the draft rules with the following key aims in mind:

• To achieve greater efficiency. This means a process that runs as smoothly as possible, reduces delays and makes the most of time spent in court.
• To encourage consistency in the conduct of inquiries across Scotland. The experience of the working group suggests that there is divergence in practice across sheriff courts. It is hoped that the inclusion of a set of guiding principles within the rules will encourage a more consistent approach to the conduct of inquiries.
• To reinforce and re-emphasise the inquisitorial nature of an inquiry, bearing in mind some people may have their own agenda and treat an FAI as a precursor to litigation.

The draft rules are designed to encourage the expeditious progress of fatal accident inquiries and make the most efficient use of time spent in court. Much greater emphasis is placed on active shrieval inquiry management, and the rules provide a broad power to allow sheriffs to tailor the procedure in response to the nature and complexity of the inquiry.

Front loading and the preliminary hearing

If the process is to be efficient, that means making the most productive use of the available time in court and controlling the evidence and questioning. In order to achieve that efficiency there will require to be greater front loading of the process, and the preliminary hearing will be key to that.

At the moment these hearings are held in some sheriff courts but not others. Going forward the default position is that a preliminary hearing should be held unless the sheriff dispenses with it. In practice that will only happen in the most simple and straightforward of inquiries.

The preliminary hearing phase of the procedure is designed to take the participants and the sheriff from the point that the inquiry is begun by the procurator fiscal to the date on which the inquiry hearing can start. If done properly, it should mean that once the inquiry begins, it is properly focused with participants sharing a common understanding of its scope; the sheriff will have given orders to ensure it will be conducted efficiently, and evidence is ready to be presented to the inquiry in the manner ordered by the sheriff.

It should be stressed that multiple preliminary hearings may not be uncommon. The idea is that the sheriff is to continue the preliminary hearing until the issues have been honed as far as possible. That may take a few hearings even in relatively straightforward cases.

Shrieval inquiry management

The general thrust of civil justice reform is in the direction of sheriffs and judges taking a much more active role in managing cases that come before them. This applies equally to inquiries, where there will be far more emphasis on shrieval inquiry management. As part of this the sheriff at an inquiry will be expected to:

• front load the process – the preliminary hearing will be key;
• keep a tight rein over the evidence and the participants;
• be flexible in responding to the unexpected and tailor the process to reflect the nature of the inquiry.

In order to assist the sheriff in managing the inquiry, the draft rules give sheriffs a very wide power, which is limited only by what is necessary to “further the purpose of the inquiry”. The sheriff is therefore afforded a great deal of flexibility and freedom in the management of an inquiry.

Conferring maximum flexibility can sometimes give rise to inconsistent application. Given that consistency is one of the working group’s overarching aims, a set of inquiry principles has also been included in the rules. This legislative technique is considered to aid effective case management and support the exercise of judicial discretion.

The draft rules include a provision on judicial continuity, which was inspired by the practice notes on preliminary hearings which apply in Edinburgh and Glasgow Sheriff Courts. They provide that the same sheriff should preside over both the preliminary hearing and the inquiry.

Evidence provisions

Agreement of evidence. The draft rules contain a mechanism which participants may use, at any point, to agree evidence, and parties are also placed under a strong duty to agree evidence which is unlikely to be disputed.

Witness statements. The draft rules contain a mechanism whereby the sheriff can order that witnesses are to give their evidence in chief by way of witness statement. The intention behind this is to move away from the practice of a witness spending time reciting or summarising their expert report in court. This should enable the court and participants to focus on cross-examination. One of the questions posed in the consultation is whether witness statements should be a default, which the sheriff can order not to apply, or whether the converse presumption should apply.

Expert evidence. The rules also contain a code governing the evidence of expert witnesses, with most provisions being the first of their type in the Scottish courts. In particular, the rules make provision for the appointment of single joint experts where the sheriff considers that this would further the purpose of the inquiry. The draft rules also make provision for concurrent presentation of experts' evidence (or “hot tubbing” as it is also known), whereby two or more expert witnesses can be called together and have a discussion about where they differ and why.

The consultation

The consultation is currently open. We would stress that the underlying law and policy has been consulted upon twice: first in relation to Lord Cullen’s review and secondly in relation to the Scottish Government bill. Consultees' views are therefore welcomed on the practical aspects of the conduct of an inquiry and the way these are dealt with in the rules; the underlying law and overarching policy having been settled during the passage of the bill.